Technical defects in legal applications should not prevent justice; courts should allow opportunities to rectify such issues.

Order :

1. The present miscellaneous appeal has been filed against the order dated 12.12.2024 passed by the Additional District Judge No.4, Jodhpur Metropolitan in Civil Misc. Application No.80/2024 whereby the application under Order 41 Rule 19 and Order 9 Rule 9 read with Section 151 of the Code of Civil Procedure as filed by the applicant stood rejected.

2. The facts are that ‘no instructions’ were pleaded on 17.04.2023 by the counsel representing the appellants in the appeal in question. Prior to the said date, the matter was posted for appropriate steps to be taken qua deceased respondent Nos.2/3/1 and 3/5. However, no steps qua the said deceased respondents were taken and ‘no instructions’ were pleaded by the counsel. Therefore on 15.05.2023, the appeal was dismissed in non-prosecution and non-compliance.

3. Aggrieved of the order dated 15.05.2023, an application on 03.07.2023 was filed in terms of the aforementioned provisions on behalf of the appellant-applicants for restoration of the said appeal. Although the said application was filed on behalf of all the applicants, but then the same was signed by one of the appellants Sunil Dutt only and even the affidavit in support of the application was signed and verified by him only.

4. However, Sunil Dutt i.e. the applicant expired on 20.01.2024 and despite time been sought and granted for appropriate steps to be taken qua the said deceased applicant, no steps were taken and hence, the learned Court proceeded on to reject the application on the premise that the same had abated.

5. The learned Court observed that it was only because of no further instructions been given by the applicants to the counsel, he pleaded ‘no instructions’. The Court further observed that although a Vakalatnama/power on behalf of respondent Nos.1/1 to 1/3 i.e. the legal representatives of Shiv Dutt was available on record, but then the said respondents had not preferred the application in question and further that the application was not even verified in terms of Order 6 Rule 15, CPC.

6. Learned counsel for the appellant submits that the observations as made by learned Appellate Court were mere technical lacunas and the Court could have directed for curing the same. Counsel further submits that even otherwise the Vakalatnama of the present appellant was available on record and hence, the application could not have been dismissed on the ground that it was not signed by him.

7. So far as ‘no instructions’ been pleaded by the counsel before learned Court is concerned, counsel submits that the notice was received in the month of June 2023 by the counsel and the present application was filed on 03.07.2023 which could not have been termed to be highly delayed and hence, ought to have been allowed.

8. Per contra, learned Senior counsel appearing on behalf of the respondents while supporting the order impugned submits that the application even otherwise could not have been allowed as the same was supported by an affidavit of Sunil Dutt only who admittedly expired on 20.01.2024 and whose legal representatives have not been brought on record. Therefore, the facts as stated in the application cannot be termed to be verified in accordance with law.

9. Heard learned counsel for the parties and perused the material available on record.

10. The fact of the application in question having been filed solely by Sunil Dutt and being supported by his affidavit only is not denied.

11. In view of the said fact and in view of the fact that the legal representatives of the said applicant Sunil Dutt were not brought on record, the finding as recorded by the learned Appellate Court to the extent of the application having abated, does not deserve any interference being in consonan